‘Tasered to Incapacitation’ Claim Survives

(CN) – A Pennsylvania police officer must face claims that he left a man “permanently incapacitated” by Tasering him in the back, causing him to strike his head on the concrete, a federal judge ruled. Mary Estep sued the Boroughs of Cresson and Portage, Pa. and two police officers on behalf of her son, Craig Baum, in September 2011. Portage police Officer Donald Wyar stopped her son after seeing a green car swerve near the Portage Police Department building on Sept. 20, 2009, Estep said in the original complaint in the Western District of Pennsylvania. Wyar had been looking for a vehicle of that color, having heard from Cresson police Officer Mackey that a passenger, Baum, was carrying drugs. (Wyar and Mackey are defendants; Mackey’s first name is not stated in the lawsuit or the recent ruling.) Wyar stopped the car and called for backup, and when Mackey arrived, Baum consented to a search-allegedly, but only allegedly, voluntarily – according to the complaint. To preserve “the pretense of voluntariness,” Wyar told Mackey – who was armed with a Taser – not to restrain Baum, Baum’s mother says in the complaint. Baum apparently changed his mind about the search and tried to run across the street, whereupon Mackey Tasered him from behind, so that he “pitched forward and struck his head on the street and/or curb,” leaving him “totally and permanently incapacitated,” his mother says. U.S. District Judge Kim Gibson granted Portage and Wyar’s motion to dismiss on July 19, 2012, but granted Estep leave to amend the complaint. The amended complaint asserts claims for excessive force against the officers and municipal liability claims for failure to train and supervise against the boroughs, in violation of the Fourth and 14th Amendments. Portage and Wyar sought dismissal, which Gibson partially denied on Friday the 13th. Gibson upheld the claims that “Portage’s policy of inviting officers from other jurisdictions to provide assistance without properly training them regarding the appropriate use of force constituted ‘deliberate indifference to the constitutional rights of Baum and others similarly situated;'” that its “custom of failing to train police officers was ‘the proximate cause of the injuries sustained by Baum,’ and, furthermore, that the asserted constitutional violations were intentional.” The claim that Wyar “knew of and acquiesced to Officer Mackey’s use of the Taser against Baum” also survived. “Plaintiff’s amended complaint alleges – sufficiently to state a plausible claim for relief – that Officer Wyar orchestrated the circumstances resulting in Baum’s injuries and was directing the actions of Officer Mackey,” Gibson ruled. The complaint also sufficiently alleges that Wyar failed to intervene. “Officer Wyar asked Officer Mackey to escort Baum to the police station, knowing that Officer Mackey was prepared to use his Taser,” the judge wrote. “Thus, plaintiff has alleged that Officer Wyar created a volatile situation culminating with Baum being Tased and seriously injured. Likewise, plaintiff has intimated that Officer Wyar had the opportunity to intervene, but failed to do so.” The court deferred ruling on whether Wyar is entitled to qualified immunity. Gibson tossed punitive damages claims against the boroughs, but the punitive damage claims against Wyar survived.